DC Congressional Representation: The Legal Way!

Posted April 5, 2007, 2:29 p.m.

If you happen to live in the DC metro area or—God forbid—in the city itself, you’ve probably heard so much about the issue of DC congressional representation that you can hardly bear to hear any more. In fact, the default license plate issued to DC citizens even has “Taxation Without Representation” emblazoned across the bottom as a poke at their lack of voting representation in Congress. For those with a 7th grade understanding of constitutional law, I hear you can still choose to have your license plate made without the catch-phrase.

Personally, I consider the ‘DC vote’ thing a non-issue. From the very foundation of our current system of government, non-state entities (including territories like Guam, Puerto Rico, and the U.S. Virgin Islands, as well as the District of Columbia) have not had representation in Congress. In fact, non-state entities do not get to participate in the electoral college which selects the President of the United States either, with the exception of DC which was granted such representation by the Twenty-Third Amendment.

The long-and-short of it is this: If you care so darn much about having representation in Congress, move to a state. We have fifty of them to choose from, and with their wide range of people, politics, population size, land mass, and weather, I’m sure anybody in DC could find someplace else to happily call home if they wanted to.

Having said that, I have no real problem with giving DC (or any of the other non-state entities) congressional representation. One of the beauties of our republic is that we can do pretty much whatever we want. But, if we are going to do it, we must do it in within the confines of constitutional law—as we did when we passed the Twenty-Third Amendment and gave DC three seats on the electoral college for the selection of presidents.

Article I, Section 2 of the Constitution (the third sentence of the document!) clearly states that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . ” That’s pretty cut-and-dry to me; representatives must be chosen by people from states, not from territories or federal districts. Our Congress, apparently devoid of a 7th grade knowledge of constitutional law or a 3rd grade reading ability, nearly passed a bill recently that would have granted the people of DC a vote in the House. The bill finally stalled after President Bush promised a veto, on the grounds that the bill was blatantly, obviously, unquestionably, ludicrously unconstitutional.

This is especially bothersome to me because there are no less than three perfectly legal, perfectly constitutional ways of giving the people of Washington, DC, representation in the House (and even the Senate, if we want). There are probably more, but these are the three I’m aware of:

1) Pass a constitutional amendment.

Giving the people of Washington, DC, representation in the House while it remains a federal district would require a constitutional amendment. I would start with the text of the Twenty-Third Amendment and tweak it as appropriate. Here’s a possible structure:

The People of the District constituting the seat of government of the United States shall elect in such manner as the Congress may direct:

A number of Representatives in Congress equal to the whole number of Representatives to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those elected by the People of the several States, but they shall be considered to be Representatives elected by the People of a State.

The amendment would need to be proposed by 2/3 of both houses of Congress, then ratified by 3/4 of the state legislatures or by Conventions in 3/4 of the states. There’s also the never-used option where 2/3 of the state legislatures call for a Constitutional Convention to propose the amendment(s), the outcome of which would still need to be ratified by the same process. Amendments are notoriously difficult to get passed and ratified, but maybe it’s worth a shot.

2) Make DC a State.

While the founders intended for the seat of the federal government to be located in a federal district (outside the control of any state), it’s debatable whether it’s a requirement. Article I, Section 8, Clause 17 only says “[The Congress shall have Power] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States . . . “

Even if you read that text as a requirement that the seat of government be in a federal district (which I do not), the size of the federal district can certainly be anything smaller than a ten mile square. The federally-managed ‘District of Columbia’ could remain as a zone encompassing the concentration of federal buildings, museums, and monuments downtown, while the remainder of the city—homes, businesses, and universities—could become the new state of Columbia.

The standard process for becoming a state is that the territory-in-question makes it known (usually through a ballot initiative) that it wishes to become a state, then Congress would direct the prospective state to create a constitution for itself, upon which Congress would approve the constitution and admit the state into the union. While this is the usual process, Article IV, Section 3, Clause 1 really doesn’t say anything more than “New States may be admitted by the Congress into this Union.” Congress has a lot of leeway on how this would actually be done.

As a state, Columbia would receive two Senators all its own and at least one representative in the House, the actual number depending on the census-based nationwide proportional breakdown.

3) ‘Retrocede’ DC back to Maryland.

One of the interesting facts about the District of Columbia is that it was originally quite a bit larger than it is today. In 1790, Maryland ceded 68 square miles of land and Virginia ceded 32 to the federal government to become the ‘federal city.’ This combined 100 square miles (“ten miles square”) was the maximum allowed by the Constitution.

In the 1840s, a ‘retrocession’ movement grew on the Virginia-side of the Potomac River. The people passed a referendum asking to be returned to Virginia, Congress passed a bill to make it happen, and—after the Virginia General Assembly’s approval—the 32 square miles of Washington, DC, south and west of the Potomac were ceded back to Virginia in 1847 and became Arlington County. That’s why, to this day, Arlington County looks like it completes DC’s partial-diamond shape on a map. It is also why the citizens of Arlington County, now part of a state again, have full voting representation in both houses of Congress.

Given the fact that the federal district need not exist (or, if it must, it need not take up 68 square miles), all or most of the District of Columbia can be ‘retroceded’ to Maryland just like the other 32 were ‘retroceded’ to Virginia in 1847. All it would take is the congressional will and the approval of Maryland’s legislature to make it happen, and the people of DC would—like their brethren across the river—receive full voting representation in Congress.

So there ya’ go: Three legal, constitutional ways to give the citizens of Washington, DC, voting congressional representation. The Democratic Party, which holds a congressional majority and—it must be said—stands to benefit from DC’s solidly-Democratic citizenry, has every opportunity to make it happen. All they have to do is read the Constitution and present a plan that would pass its muster, rather than ignorantly harping on one that does not.

Scott Bradford has been building web sites and using them to say what he thinks since 1995, which tended to get him in trouble with power-tripping assistant principals at the time. He holds a bachelor’s degree in Public Administration from George Mason University, but has spent most of his career (so far) working on public- and private-sector web sites. He is not a member of any political party, and brands himself an ‘independent constitutional conservative.’ In addition to holding down a day job and blogging about challenging subjects like politics, religion, and technology, Scott is also a devout Catholic, gun-owner, bike rider, and music lover with a wife, two cats, and a dog.